Robert Bauer offers students insight into his time as White House counsel

NYU Law’s student chapter of the American Constitution Society for Law and Policy sponsored a Q&A on March 12 in which Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, interviewed Robert Bauer, formerly White House counsel during Barack Obama’s first term and currently a distinguished scholar in residence and senior lecturer at the Law School, about his career as a political lawyer.

Bauer, who has also served as Obama’s personal attorney and as general counsel to both Obama’s presidential campaigns and the Democratic National Committee, entered the political realm early, attending his first convention at age 16. Still, he said, becoming a political law specialist was something of a fluke. When he graduated from law school in 1976, developments in the post-Watergate U.S. included passage of the Federal Election Campaign Act, Congress’s revamping of its own ethics code, and a growing number of public-corruption prosecutions. The timing was simply right. “It appeared, and it turned out to be true, that there was going to be a commitment that we hadn’t previously seen in American legal history to various forms of regulating the political process,” Bauer said. By the mid-1980s, the bulk of his practice consisted of political law.

Even now, Bauer observed, his specialty is still small, with only a handful of major firms active in the field and only a few dozen true experts nationwide. “If you were to take everybody in the United States who really, really knows a fair amount about each of the components of political law—campaign finance, redistricting, regulation of Congressional ethics, tax-exempt advocacy issues, recounts—you probably would tap out at 30 to 40 at most,” he said.

Bauer’s clients include not only political candidates but also an array of other relevant players: party committees, corporations, trade associations, unions, and tax-exempt advocacy groups, among others. In an increasingly complex regulatory landscape, he said, “Our role is to counsel on the legal risks and opportunities for conducting political activity.” Much of his practice involves counseling, although there is also litigation involving redistricting and recounts, as well as suits brought both by and against regulatory authorities over campaign finance issues. Whether for good or ill, Bauer said, “There are numerous facets of the political process that have become regulated very intensively in recent decades, bringing us to a point where it is difficult to explain to people who conduct political activity, in terms that they can understand, what they can do. Frankly, even when explaining to them how to structure what they can do, it’s very difficult to have them accept that those limitations make any sense.”

Regarding suggestions that the White House counsel’s office has become overgrown and overly influential as it provides advice on everything from questions of presidential authority and the constitutionality of signing statements to the thorniest national security matters, Bauer said, “It’s just impossible to imagine that the president of the United States, given the authority that he possesses and the responsibility that he is expected to exercise, would not have access to legal advice in his capacity as president.” A range of perspectives both within and outside the counsel’s office, he said, means that the White House counsel’s influence certainly does not go unchecked.

In response to a list of momentous controversies with which the Obama administration grappled during the 18-month period when Bauer served as White House counsel—Guantánamo detention policy, drones, the raid to kill Osama bin Laden—Bauer was candid about their difficulty. “These are really hard issues. They do not translate well into the public debate, necessarily.... You can see lawyers going through 20, 30, even 40 drafts of a memorandum on a complicated issue and still not feeling they have it quite right.... The task of the White House counsel is to make sure that when the conversation gets to the president, it’s not just this pluralistic jumble. Somebody has been able to cut through all of that and really give the president a very clear view of what the best arguments are and what his choices genuinely are.”